Tag: Ontario Superior Court of Justice

07 Jan

The Court Appoints an Estate Trustee During Litigation (ETDL)

James Jacuta Litigation Tags: , 0 Comments

The Ontario Superior Court of Justice decision released on December 8, 2020, in the Estate of Klaczkowski, deals with a number of issues including when the court should remove an Estate Trustee and appoint a litigation Trustee. Two brothers disagreed on matters related to their mother’s estate, including division of proceeds of a TD Trading Account, a commercial property, and a safety deposit box (with $32,000 in $1,000 dollar bills). They were named in the will as Estate Trustees and beneficiaries. Justice Leiper reviewed the following points in regard to the court appointment of an Estate Trustee During Litigation:

  • Ordering the removal of an estate trustee is a decision not to be taken lightly and only where it is clearly necessary: Re Weil, 1961 CanLII 157 (ON CA), [1961] O.R. 888 at 889 (C.A.)
  • Friction between co-estate trustees may be a basis for a removal of both estate trustees where it impacts the decision-making process: Radford v. Wilkins (2008), 43 ETR (3d) 74, 2008 CanLII 45548 (S.C.J.) at paras 111-113;
  • A failure to properly keep records resulting in the need to make corrective disclosure is an aggravating factor in considering whether a trustee ought to be removed. Similarly, failure to consult with co-trustees is significant. Graham v. Benton, 2020 ONSC 6985 at paras. 156-157;
  • A testator’s choice of estate trustee should not be lightly interfered with, but the appointment of an ETDL is a “much less intrusive” remedy that exists where “parties’ duties as fiduciaries can be inconsistent with their ongoing litigation interests.” A court should consider the balance of convenience and, since the appointment of an ETDL is not an extraordinary remedy, “the court will favour appointment in the vast majority of cases unless the administration of the estate involved is particularly straightforward or simple”: Mayer v. Rubin, 2017 ONSC 3498 at paras. 24-36.

The Court ordered that –

  1.        An Estate Trustee During Litigation will be appointed for the estate, and
  2.        If the parties are unable to agree to the naming of the Estate Trustee During Litigation by February 1, 2021, they are to appear before March 1, 2021, to make submissions on an appropriate Estate Trustee During Litigation.

For more on Estate Trustees During Litigation please see the blog by Sydney Osmar: Appointing an Estate Trustee During Litigation.

Thanks for reading!

James Jacuta

25 May

Latest Notice to the Profession – Highlights

Kira Domratchev Estate & Trust, Estate Litigation, In the News Tags: , , , , , , 0 Comments

As many are aware, the Superior Court of Justice has essentially shut down operations, subject to certain narrow exceptions, in light of COVID-19.

On May 13, 2020, a Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media was published regarding “Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020”. The Notice can be read in its entirety here. Below, I discuss some of the highlights relevant to the estates list.

  • The Notice specifically denotes that the Superior Court of Justice has not closed and that it continues to expand its operations virtually – in writing, or by telephone or video conference hearings. It is further highlighted, that during the suspension of regular in-court operations, lawyers and parties are expected to actively move cases forward.
  • Although the requirement to gown for a Superior Court of Justice appearance is suspended, parties participating in video conferences are expected to dress in appropriate business attire and should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. In fact, some guidance from the Superior Court of Justice on the issue of technical set-up can be found here.
  • On the issue of filings, the Notice indicates that factums should be hyperlinked to relevant cases (instead of filing a Brief of Authorities) and there is a very specific format of the email that is to be sent to the Court to request dates or file materials. Importantly, the size of emails has been expanded to 35MB, however, it is also noted to limit filed materials to only those necessary for the hearing (in addition to the restrictions related to the length of material, already in place).
  • Although materials are being filed electronically, given the pandemic and the need to isolate, the Superior Court of Justice expects that all materials filed electronically be later filed in hard copy with the Court and the requisite filing fee be paid. That means, that it is important to keep track of all materials filed electronically, as there is a positive obligation to deliver hard copies and payment for the filing, at a later time.
  • Service via email is permitted such that it is not necessary to obtain consent or a court order to serve a document by email where email service is permitted.
  • Whereas, urgent matters continue being heard (subject to the Superior Court of Justice’s discretion to decline to schedule for immediate hearing any particular matter listed in the Notice), the following Toronto Commercial and Estate List matters are being heard (the Notice to Profession – Toronto, can be found here):
    1. Select motions;
    2. Select applications;
    3. Case management conferences;
    4. Pre-trial conferences; and
    5. Judicial settlement conferences.

Reviewing this Notice shows that court services are expanding. Certainly, one positive effect of the pandemic has been the overall embrace of various technologies by the Superior Court of Justice, that had not been in place before.

Here is to hoping that the restrictions associated with COVID-19 are soon lifted and the pandemic blows over. At the same time, I am certainly excited to see whether we will see a significant change in court operations moving forward, as a result of this involuntary technological leap forward.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

TALK 2 NICE: Support for the Elderly During COVID-19

A Further Update on the Estate Arbitration and Litigation Management (EALM) Initiative 

The Pandemic, Law, Technology, and Change

21 May

Hull on Estates #572 – Will Challenges and Mistake of Fact

76admin Hull on Estate and Succession Planning, Podcasts, Show Notes Tags: , , , , , 0 Comments

This week on Hull on Estates, Paul Trudelle and Christina Canestraro discuss Cavanagh et al. v Sutherland et al., in which the Ontario Superior Court of Justice addresses questions of fact and law related to motions for summary judgment and mistake of fact.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Paul Trudelle.

Click here for more information on Christina Canestraro.

23 Apr

Hull on Estates #570 – Drafting Solicitors and Will Challenges

76admin Hull on Estate and Succession Planning, Podcasts, Show Notes Tags: , , , , , , 0 Comments

This week on Hull and Estate, Natalia Angelini and Sydney Osmar discuss Dale v Prentice, in which the Ontario Superior Court of Justice addresses whether a drafting solicitor can represent the estate in a will challenge.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

Click here for more information on Sydney Osmar.

13 Nov

Hull on Estates #559 – The Importance of Comprehensive Management Plans

76admin Estate & Trust, Estate Planning, Hull on Estates, Litigation, Podcasts, Uncategorized Tags: , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss the recent decision of the Ontario Superior Court of Justice in Connolly v Connolly and PGT, and the importance of filing comprehensive management plans in support of applications for appointment of guardians of property.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

Click here for more information on Nick Esterbauer.

17 Apr

Hull on Estates #544 – Consolidation of Family Law Act and Dependant Support Claims

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , 0 Comments

Today on Hull and Estates, Stuart Clark and Umair Abdul Qadir discuss the recent decision in Cohen v Cohen, 2018 ONSC 1613, in which the Honourable Justice Maranger discussed the Ontario Superior Court of Justice’s jurisdiction to consolidate applications for equalization commenced pursuant to the Family Law Act with applications for dependant’s relief under Part V of the Succession Law Reform Act. You can read more about the Cohen decision on our blog.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Stuart Clark.

Click here for more information on Umair Abdul Qadir.

21 Sep

Joint Tenancy, Survivorship, and Adverse Possession

Ian Hull Estate & Trust, General Interest Tags: , , , , , , , 0 Comments

A recent decision of the Ontario Superior Court of Justice, Post Estate (Trustee of) v Hamilton, 2015 ONSC 5252 (available on Westlaw) considered a rather unusual set of facts with respect to joint tenancy and an interesting application of the equitable remedy of adverse possession.

Edward and Heather had been common law spouses several decades ago. They purchased a home together (the “home”) in 1980, as joint tenants. Three years later, Edward and Heather ended their relationship, and Heather moved out of the home they had bought together. Edward lived in the home ever since, until his death in December 2014. Heather has not been heard from since 1983.

When Edward died last year, his Estate ran into a roadblock with the home. Edward’s family had understood that the home was in Edward’s name alone, but were surprised to find that Heather and Edward still owned the home together as joint tenants. Under the law of joint tenancy, when one of the joint owners dies, the asset passes to the surviving joint tenant, by right of survivorship. Theoretically, therefore, the home should have become Heather’s property.

The wrinkle in this case was that, despite “strenuous efforts”, Heather could not be found. Edward’s Estate Trustee then brought an Application for an Order vesting title in the home in the Estate. The issue considered by the Honourable Justice MacDougall was thus, whether one joint tenant can acquire full title to property by way of adverse possession. In order to establish title by possession, Justice MacDougall stated that a party must show three things:

  • i. Actual possession for the statutory period by him/herself and those through whom s/he claims;
  • ii. That such possession was with the intention of excluding from possession the owner or person entitled to possession; and
  • iii. Discontinuance of possession for the statutory period by the owners and all others, if any, entitled to possession.

With respect to the first and third requirements, Edward had actual possession of the home by himself for 32 years, which is well beyond the 10 year statutory period required. With respect to the second requirement, the court found that, although Edward did not have a “clear and direct intention” to exclude Heather, the court can still infer a presumed intention to exclude and consequently find in favour of adverse possession. In this case, Justice MacDougall was able to infer such presumed intention due to the facts that Edward believed he had full ownership of the house, he paid all the expenses for the house for 32 years, and made mortgage payments and renewed the mortgage without Heather’s signature or agreement.

Thanks for reading.

Ian Hull

14 Sep

The Case of the Forged Holograph Will

Ian Hull General Interest, Wills Tags: , , , , , , , 0 Comments

A recent decision of the Ontario Superior Court of Justice, Grillo Estate v Grillo, 2015 ONSC 1352, considered an Application for an Order invalidating the holograph Will of Domenico Grillo. The Applicant was the adult daughter of Mr. Grillo, who also had two other adult children. Mr. Grillo had been born in Italy but prior to his death, was domiciled in Ontario. He had family in Italy, namely his sister and her children, and would frequently visit them. One of these such visits was in March 2014, despite the fact that at the time he was very ill.

On July 1, 2014, Mr. Grillo’s niece, Anna (in Italy) called his daughter in Canada, to tell her that Mr. Grillo was very ill. Anna subsequently made several other calls that seemed suspicious to Mr. Grillo’s children. The three children decided to go to Italy to check on their father. However, before they were able to reach him, Mr. Grillo passed away on July 4, 2014. Upon arrival, the children found that many of their father’s possessions were missing from the home he owned and in which he had been staying. Among the missing possessions were his wallet, bank cards, credit cards, passport, and jewellery.

The children were then presented with a document which Anna purported to be a holograph Will executed by Mr. Grillo on May 5, 2014, while he was in Italy. The beneficiaries under this Will were his three adult children, as well as Anna, his niece. Mr. Grillo had executed a prior Will in 1994, under which his three adult children were equal beneficiaries. Mr. Grillo’s children could immediately see that the alleged holograph Will was not written in their father’s handwriting. An Italian handwriting expert also came to the same conclusion.

As this case had an international aspect, the court had to determine whether there was a real and substantial connection to the jurisdiction of Ontario, using the tests laid down in Club Resorts Ltd v Van Breda, [2012] 1 S.C.R. 572. The Court found that there was a real and substantial connection, due to the following:

  • Notwithstanding that Mr. Grillo was in Italy when he died, he was a resident of Ontario and Rule 17.02(b) and (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permits service ex juris in respect of the administration of the estate of a deceased person who was a resident of Ontario, or for the setting aside of a will in respect of personal property in Ontario;
  • All presumptive connecting factors generally pointed to a relationship between the subject matter of the litigation and the forum of Ontario such that it would be reasonable to expect that the defendant, in this case Anna, would be called to answer legal proceedings in Ontario;
  • As per section 26(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, the fact that Mr. Grillo was domiciled in Ontario at the time of his death, means that the law of Ontario will govern the formalities and validity of both the 1994 will and the 2014 will.

Perhaps the most interesting element of this case is that criminal charges had been laid in Italy for various counts of theft, and writing and registering a forged will. In light of this evidence, as well as the evidence from the Applicant and the handwriting expert suggesting that Mr. Grillo had not written the 2014 holograph Will, the Court had little trouble finding that the holograph Will was not valid.

Thanks for reading.

Ian M. Hull

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

TRY HULL E-STATE PLANNER SOFTWARE

Hull e-State Planner is a comprehensive estate planning software designed to make the estate planning process simple, efficient and client friendly.

Try it here!

CATEGORIES

ARCHIVES

TWITTER WIDGET